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Stare Decisis, or Lack Thereof

By: Ralph G. Smith and Daniel Smith

For the most part, there is no real stare, decisis in Latin American law. Generally speaking, a decision on appeal is not authority for anything, other than the case at hand, and not much authority there. This situation is the direct result of the basic premise of the civil law, that is, that only the legislature may promulgate laws, and that judicial interpretation of the law is in direct conflict with that basic premise. The civil law courts have traditionally, through the ages, relied upon doctrina, contained in learned treatises written by legal scholars, instead of decisions by judges.

The Venezuelan Supreme Court put it this way:

” … As for the violation of the case law of this Court which is complained of, it is declared that such a violation is nonexistent, since the Court’s decisions are binding only in the individual case where rendered and therefore they may not be infringed in any other.”

The Venezuelan court may be regarded as somewhat liberal, since it does state that the Court’s decisions are binding upon the lower court in the case at hand. Traditionally, the higher court’s decision would not even be binding in that respect.

Under the civil law system an appeal from the trial, or first instance, court results, effectively, in a new trial, or at least a continuation of the old one. The appellate court may examine the whole record, redetermine the facts, and even take additional evidence. But if the appeal is successful, it goes back down to the trial court, which, traditionally in most countries, is not bound to follow the ruling of the court of appeals! I have been told by Guatemalan attorneys that if the case goes up and back twice, then the lower court must follow the ruling, however. In other countries a decision becomes binding precedent (vinculante) if it is pronounced by all of the Supreme Court justices acting together (the corte plena). Costa Rica has recently enacted reforms which make the decisions of the constitutional section of the Supreme Court binding precedent.

A further strange fact (to common law lawyers) is that in this system, the appellate courts, including the Supreme Court, are ordinarily not bound by their own decisions. The rationale for all this is, again, the view that the judges should not interpret laws. If the law is unclear, it is for the legislature to make it clear. At some times and in some places special courts under the legislative, rather than the judicial branch, were organized to meet this problem. In Ecuador, there is a special Constitutional Court to hear constitutional questions. Rulings of this body are then sent to the constitutional sala of the Supreme Court for “final” decision. The Congress, however, still has the ultimate constitutional authority, and may overturn the Supreme Court’s ruling.

In theory, the decisions on appeal can be ignored by everyone concerned. In fact, of course, the decisions do carry weight, because the lower court judges are concerned about what other judges think of them. As a practical matter, it would be very difficult to rely upon, or even cite, supporting opinions of appellate courts, because, in the first place, they are seldom reduced to anything like the opinions of common law appellate courts, and in the second, they are generally not distributed and made easily available to the lawyer, let alone the general public. In the jurisdictions where opinions (“jurisprudencia“) are readily available, they are regarded as persuasive authority, rather than binding precedent.

There is another type of appellate procedure in Latin American countries, known as the recurso de casación, the “cassation” appeal, which is somewhat similar to a common law appeal in that it considers matters of law and procedure only, and does not deal with the facts of a case. These cassation proceedings are generally a function of the Supreme Court, or a special Cassation Court, and are much more formal than the other types of appeal. Ecuador has recently reformed its constitution so as to limit ordinary appeals and to convert the Supreme Court into, basically, a court of cassation appeals.

Efforts to introduce the concept of stare decisis into the civil law are a relatively recent development. Whether they will ever be completely successful is open to question.

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